Lockett, Arvin DeWayne v. State

Affirmed and Memorandum Opinion filed November 24, 2004

Affirmed and Memorandum Opinion filed November 24, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00601-CR

____________

ARVIN DEWAYNE LOCKETT, Appellant

V.

THE STATE OF TEXAS, Appellee

___________________________________________________

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 02CR1387

___________________________________________________

M E M O R A N D U M   O P I N I O N

Appellant Arvin DeWayne Lockett asserts that the evidence is legally insufficient to support his conviction for aggravated robbery.  We affirm.

I.  Factual and Procedural Background

On June 15, 2002, appellant visited Pete James at the home of James=s girlfriend, Latoya Cooper.  Appellant asked James to help him rob a Sonic restaurant in League City.  Because James previously had worked at that Sonic, appellant asked James details about when and how the establishment closed.  At approximately 11:00 that night, appellant returned to Cooper=s home to pick up James.  Cooper testified James took a stocking cap with him, but she did not see him carry anything else.

Shortly after midnight, Andy Vidal, the manager of a Sonic restaurant in League City, was counting money for the night=s deposit.  The restaurant was closed.  A man approached Vidal from behind, placed a gun on his neck and told him to Ashut up and give him the money.@  Vidal gave the gunman the money from the night=s deposit and also gave him the money in the restaurant=s safe.  Vidal later identified the gunman as Pete James, who previously had worked at the restaurant.  Lisa Lofaro, another Sonic employee, called the police and reported the robbery. 

Officer Carl Stoddard of the League City Police Department received a dispatch to respond to the robbery.  While en route to the Sonic restaurant, he observed a car being driven by a person fitting the thief=s description.  Officer Stoddard turned and followed the car and requested two other police officers to follow in their vehicles.  All four cars, including the suspect car, stopped at a traffic light, which had turned red.  When the signal changed, Officer Stoddard turned on his emergency lights and siren and attempted a traffic stop.  The driver of the suspect car proceeded to the shoulder of the road, but continued driving.  The suspect car continued on the shoulder of FM 270 until it reached FM 646.  Officer Stoddard advised dispatch that the three officers were involved in a pursuit.  The suspect car continued to travel on FM 646 until it reached Ohio Street and then turned left.  Officer Stoddard and the two other pursuing officers began to discuss on their radios how they would be able to stop the fleeing car.  At that time another officer was dispatched to obtain spikes to deflate the suspect car=s tires so it could be stopped.  After a chase that went on for two to three miles, the suspect car slowed, and Pete James fell out of the passenger-side door. Officer Stoddard chased James on foot and apprehended him after using pepper spray.  Other officers apprehended appellant, who was driving the car, and asked if he could identify James.  According to officers, appellant said he did not know James and that James had kidnapped him.

Appellant testified that he never went to Cooper=s house on the day of the robbery.  He stated James called him that night to ask for a ride to get something to eat.  Appellant denied knowing about any plan to rob the Sonic restaurant.  Appellant claimed he dropped James off at the Sonic restaurant and left to return home.  After appellant drove away, James, with gun in hand, ran out in front of appellant=s car, jumped into the backseat, and told appellant, ANo, don=t stop.  Go.  Go.@  Appellant said he did not stop when the police started pursuing the car because he felt scared and nervous and James encouraged him to continue driving. Appellant testified that when he was asked to identify James at the scene, appellant told the police that he did not know James=s full name, not that he did not know James. Appellant also stated he did not encourage or assist James in robbing the Sonic restaurant. 

Appellant was charged by indictment with aggravated robbery. Appellant pleaded not guilty.  A jury found appellant guilty and assessed punishment at five years in prison and a $3,000 fine, both of which were probated for five years. 

II.  Issue and Analysis

In appellant=s sole issue on appeal, he asserts the evidence is legally insufficient to support his conviction for aggravated robbery because there was no evidence indicating that appellant knew a deadly weapon would be used in the robbery.

A person commits an aggravated robbery if the person uses or exhibits a deadly weapon, and, in the course of committing theft with the intent to obtain or maintain control of the property, the person intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.  Tex. Pen. Code Ann. '' 29.02(a)(2), 29.03(a)(2) (Vernon 2004). A person is criminally responsible for an offense committed by another if that person, acting with intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid the other person to commit the offense.  Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 1994).  The jury found appellant guilty as charged in the indictment, which alleged aggravated robbery based on the use of a deadly weapon.  By its verdict, the jury necessarily found that appellant knew a deadly weapon would be used.  See Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).  On a special issue submission, the jury found that appellant did not know a deadly weapon would be used in the commission of the offense.  Appellant alleges the evidence is legally insufficient to support his aggravated-robbery conviction because a rational trier of fact could not conclude that appellant knew his co-defendant would use or exhibit a deadly weapon during the commission of the offense.

An affirmative finding regarding use of a deadly weapon limits a prisoner=s eligibility for parole.  See Tex. Code Crim. Proc. Ann. art. 42.12 ' 3(g)(a)(2) (Vernon Supp. 2004); Tex. Govt. Code ' 508.145(d) (Vernon 2004); Tate v. State, 939 S.W.2d 738, 752B53 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d).  Section 508.145(d) provides that if the judgment contains an affirmative finding under article 42.12, section 3(g)(a)(2) of the Texas Code of Criminal Procedure, a prisoner is not eligible for release on parole until his actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or thirty calendar years, whichever is less, but in no event is he eligible for release on parole in less than two calendar years. See Tex. Govt. Code ' 508.145(d).  Here, an affirmative deadly weapon finding would affect only appellant=s eligibility for parole, not his guilt or innocence for aggravated robbery.     

When presented with seemingly inconsistent findings regarding a deadly weapon, the appellate inquiry is limited solely to a determination of whether the evidence is legally sufficient to support the jury=s verdict.  See Ward v. State, 113 S.W.3d 518, 522B23 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d); Chavez v. State, 860 S.W.2d 714, 716B17 (Tex. App.CEl Paso 1993, no pet.); Sauceda v. State, 739 S.W.2d 375, 376 (Tex. App.CCorpus Christi 1987, pet. ref=d), citing Dunn v. United States, 284 U.S. 390, 392B94,  52 S. Ct. 189, 190B91, 76 L. Ed. 356 (1932).  In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).  The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  The jury may choose to believe or disbelieve any portion of the witnesses= testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

Here, the evidence is legally sufficient to support appellant=s conviction for aggravated robbery.  In reviewing the sufficiency of the evidence to support appellant=s participation as a party, we may consider events occurring before, during, and after the commission of the offense, and we may rely on actions of the defendant that show an understanding and common design to commit the prohibited act.  See King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App. 2000).  A rational jury could have reached the conclusion that appellant knew of James=s intent to commit the offense of aggravated robbery and acted with intent to aid him in the commission of the offense.  AIn the course of committing theft@ includes the immediate flight after the commission of the theft.  Tex. Pen. Code Ann. ' 29.01(1) (Vernon 1994).  Appellant picked up James, gun in hand, after the robbery. This evidence, coupled with testimony that appellant orchestrated the entire scheme, provided the jury with an adequate basis on which to conclude that appellant knew a deadly weapon was used in the commission of the offense. 

Evidence of appellant driving the get-away car and participating in the planning of the offense is legally sufficient to show that appellant aided James in accomplishing the aggravated robbery of the restaurant.  See Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App. 1985) (holding evidence that defendant drove get-away car after robbery sufficient to convict driver as a party to the offense when defendant=s conduct before the robbery connected him to the commission of the offense); Webber v. State, 757 S.W.2d 51, 56 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d) (holding that driving the get-away car is sufficient evidence to support finding appellant guilty of aggravated robbery under the law of parties).  Appellant contends his behavior in the aftermath of the robbery was as consistent with being surprised that James had a gun and with wanting to abandon any further role in the offense as with his participation in the offense.  To the contrary, appellant led three League City police officers on a two to three mile pursuit while fleeing the robbery scene. There was evidence that appellant planned the robbery earlier in the day, and the jury reasonably could have inferred that appellant knew James used the gun in the robbery.

Reviewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  See McDuff, 939 S.W.2d at 614.  Having found no merit in appellant=s challenge to the legal sufficiency of the evidence, we overrule appellant=s sole issue on appeal and affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed November 24, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).